P.B.Suresh Kumar, J.

1. This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.778 of 2012 on the files of the Additional Sessions Court-I, Pathanamthitta. The appellant is the sole accused in the case.

2. One Sandhya Kumari, a native of Jharkhand who was residing with her sister Babitha Devi at Kumbanad was found lying in an unconscious state by her sister and the husband of her sister, Sanjith Kumar Saha in their house at about 12.30 p.m. on 09.03.2012. When Sandhya Kumari was taken to the hospital, it was found that she was no more. The accused in the case is one Jhun Jhun Kumar, a native of Bihar. The accusation in the case is that the accused is a co-worker of Sanjith Kumar Saha; that he was residing with the family of Sanjith Kumar Saha; that on 09.03.2012 at around 12 noon, while Sanjith Kumar Saha and his family were away, the accused attempted to rape the deceased and when she resisted, the accused strangulated her to death using a shawl. The offences alleged against the accused are offences punishable under Sections 511 of 376 and 302 of the Indian Penal Code (the IPC).

3. On committal of the accused for trial, the Court of Session framed and read over the charge to the accused to which he pleaded not guilty. The prosecution, thereupon examined 18 witnesses as PW1 to PW18 and proved through them Exts.P1 to P27 documents. MO1 series are the material objects in the case. Among the witnesses examined, PW1 is the husband of the sister of the deceased with whom the deceased was residing. On culmination of the evidence, the incriminating circumstances brought out in evidence were put to the accused. The accused denied the same and maintained that he is innocent. In addition, he also stated that he does not know the deceased or Sanjith Kumar Saha; that he came to Kumbanad only on 09.03.2012 and that he was arrested by the police at about 1 p.m. on the said day from the bus stand.

4. As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused chose not to adduce any evidence. Thereupon, on an appraisal of the materials on record, the Court of Session found the accused guilty of the offences punishable under Sections 511 of 376 and Section 302 IPC. The accused was accordingly sentenced to undergo imprisonment for life and to pay fine of Rs.2,00,000/- for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay fine of Rs.50,000/- for the offence punishable under Section 511 of 376 IPC. Default sentences were also imposed on the accused. The substantive sentences imposed on the accused were ordered to run concurrently. The accused is aggrieved by the said decision of the Court of Session and hence, this appeal.

5. Heard the learned counsel for the accused as also the learned Public Prosecutor.

6. The learned counsel for the accused argued that the only evidence in the case is the evidence let in by PW1 and the same does not prove the presence of the accused at the house of PW1 at any point of time. It was argued by the learned counsel that the part of the evidence of PW1 relied on by the prosecution to prove that the accused was residing with PW1, is an answer elicited from PW1 in reply to a leading question and the said part of the evidence is liable to be eschewed. It was also argued by the learned counsel that crucial witnesses in the case namely, the wife of PW1 as also Ram Kesari, a friend of PW1 and the friends of Ram Kesari who stated to have brought the accused to the hospital on hearing the death of Sandhya Kumari were not examined. According to the learned counsel, non examination of the said witnesses is fatal to the prosecution case. The learned counsel also took us through the incriminating materials brought out in the evidence of the prosecution which were put to the accused under Section 313 of the Code of Criminal Procedure (the Code) and submitted that none of the said materials can be said to be incriminating against the accused. It was also argued by the learned counsel that despite the death of Sandhya Kumari, the police registered the case initially only under Section 174 of the Code and the same would create a strong suspicion as to the genuineness of the prosecution case. In fact, it was recited in Ext.P12 autopsy certificate that rigor mortis though passed off from head, neck and both upper limbs, the same fully retained in both lower limbs. On the basis of the said observation, it was argued by the learned counsel that rigor mortis would not pass off within 24 hours and if that be so, the same creates a genuine doubt as to the time of the death alleged by the prosecution. A few judgments of the Apex Court as also the judgments of other High Courts have also been cited by the learned counsel in support of the various propositions argued by him.

7. Having regard to the facts and circumstances of the case, the points that arise for consideration are (1) whether the prosecution has established that the death of Sandhya Kumari is a homicide and (2) whether the prosecution has established that the accused attempted to rape Sandhya Kumari and caused her death by strangulation.

8. Point (1): PW10 is the Doctor who conducted the autopsy of the body of the deceased on 10.03.2012 between 2:10 p.m. and 3 p.m. Ext.P12 is the autopsy certificate. It was deposed by PW10 that at the time of autopsy, rigor mortis passed off from head, neck and both upper limbs, fully retained in both lower limbs. It was also deposed by PW10 that the cause of death of the victim was ligature strangulation. Altogether, sixteen ante- mortem injuries were deposed to have been noted by PW10 on the body of the deceased at the time of autopsy. Among them, injuries 2 to 9 as deposed by PW10 in his evidence are the following:

“2. Contusion 0.3 x 0.2 x 0.5cm on the front of top of head 4cms above root of nose.

3. Contusion 8 x 2 x 0.5cm on the back of head below occipit, 10cms above root of neck. Skull, dura, intact. Brain was congested and oedematoas.

4. Pressure abrasion (ligature mark) 13.5cm long obliquely placed on the front and sides of neck, below the level of thyroid cartilage. It was placed 10cms below right ear (2cms broad) 8cms behind chin (1.8cm broad) 8cms below left side of mandible (1.2cm broad).

5. Pressure abrasion (ligature mark) 9cms long horizontally placed on the left side of neck. It was placed 5cms below jaw bone (2.5cms broad). 4cms below left ear (2cms broad) and 10cms below occiput (2cms broad).

6. Linear abrasion, 2cms long oblique on the left side of front of neck 6cms outer to midline and 4.5cms above collar bone.

7. Cresentic abrasion 1 x 0.1cm convexity upwards on the left side of front of neck, 2cms outer to midline and 2.5cms above collar bone.

8. Abrasion 0.2 x 0.1cm on the left side of front of neck 2cms outer to midline and 2cms above inner end of collar bone.

9. Three linear abrasions each measuring 0.5 x 0.1 x 0.1cm and 0.2 x 0.1cm one below the other, 0.5cm and 0.3cm apart, on the left side of front of neck, the upper one being 1cm outer to midline and 3.5cms above collar bone.”

PW10 clarified in his evidence that injuries 4 and 5 could be caused using MO1 shawl justifying his conclusion that the cause of death is ligature strangulation. It was also deposed by PW10 that lungs of the victim were severely congested and oedematous, which are indications of death due to strangulation. PW10 also clarified that injury Nos.2 and 3 could be caused by hitting that part of the head against a hard or blunt object during a struggle; that injury No.7 is a nail mark and that injury Nos.6, 8 and 9 could be caused by coming into contact with a rough surface. Even though PW10 was cross-examined by the counsel for the accused, the evidence tendered by PW10 that the cause of death is due to ligature strangulation has not been challenged in cross-examination. There was no suggestion also to PW10 that the death is not homicide, but only a suicide. Be that as it may, PW15, the Scientific Assistant attached to the State Forensic Science Laboratory who issued Ext.P15 report deposed that the cellophane impressions collected from the front and left neck parts of the body of the deceased at the time of inquest contained rose coloured synthetic fibres similar to the shawl seized from the scene of occurrence. Similarly, PW18, another Scientific Assistant of the Forensic Science Laboratory who issued Ext.P27 report deposed that stretching of fibres was detected in the shawl seized from the scene of occurrence. In the light of the evidence tendered by PW10 as also PW15 and PW18, it can be safely concluded that the death of Sandhya Kumari was a homicide. The finding rendered by the Court of Session in this regard is, therefore, in order.

9. Point (2): In order to deal with this point, it is necessary to refer to the evidence let in by the prosecution. The relevant witnesses are PWs 1, 5, 9, 11, 14 and 17. As pointed out by the learned counsel for the accused, we find a few leading questions in the evidence of the said witnesses and we have eschewed from our consideration the answers elicited on such questions. The witness who was examined by the prosecution as PW1 is Sanjith Kumar Saha. He deposed that he was residing at Kumbanad in a rented house with his family consisting of his wife, daughter and the deceased; that the accused who came to Kumbanad from Bihar to work with him was also residing with him in the said house; that the deceased had come to Kerala to help his wife while she was pregnant; that on 09.03.2012, he went to Muthoot Hospital, Kozhencherry for the check-up of his wife at about 9.45 a.m.; that the accused and the deceased alone were there at the house at the relevant time; that by about 12.30 p.m. when they returned, they found the front door of the house closed and that it was not opened when knocked. PW1 deposed that as there was no response from the deceased when called, they peeped into the kitchen through its window and found that the deceased was lying on the floor of the kitchen. PW1 deposed that since there was no response from the Sandhya Kumari even on pouring water on her, they broke open the front door of the house and went near the deceased; that since Sandhya Kumari was not responding, he asked the accused who was found in the adjacent room as to what happened, and there was no response from him as well. PW1 deposed that even though the deceased was taken to Fellowship Hospital, the doctor therein informed him after examining Sandhya Kumari that she was no more. It was also deposed by PW1 that when they took the deceased to the hospital, the house was locked and the accused was inside the house. It was also deposed by PW1 that he then went back to the house along with Ram Kesari and his friends, brought the accused also to the hospital as he was not responding to the questions put to him. It was also deposed by PW1 that later he went to the police station along with the son of Ram Kesari namely, Santhosh and gave Ext.P1 First Information Statement. It was clarified by PW1 in his deposition that for the said purpose, the statements made by him in Hindi were translated to Malayalam by Santhosh. PW1 identified the dresses worn by the deceased at the time when they went to the hospital in the morning hours of 09.03.2012 as MO1 series which include the rose coloured shawl referred to by PW15 in Ext.P15 report as item No.10(c) therein. In cross-examination, it was clarified by PW1 that nobody goes out of the house through its back door and as such, the same is closed.

10. PW5 is the doctor at the Fellowship Hospital, Kumbanad who examined the deceased as also the accused on 09.03.2012. She deposed that on 09.03.2012, she examined one Sandhya Kumari who was brought to the hospital by her sister, Babitha Devi and her husband, Sanjith Kumar Saha and found on examination that she was no more. Ext.P7 is the certificate issued by PW5 in this regard stating that Sandhya Kumari was brought dead. PW5 also deposed that on the same day, she examined one Jhun Jhun Kumar who was brought to the hospital by a local crowd alleging that he committed some foul play at the house. It was deposed by PW5 that on examination, he was found conscious and oriented. Ext.P8 is the wound certificate issued by PW5 in this regard. In Ext.P8, it is recited that the accused was keeping his eyes closed when he was examined. PW5 also deposed that she found two small curved abrasions 5cms apart on his right infra auxillary region, two small abrasions on the right side of his chest wall and a semi-circular contusion on the right elbow. PW5 also deposed that Jhun Jhun Kumar was handed over by her to the police for taking him to the Government Hospital. PW5 also deposed that the two small abrasions found on the infra auxillary region can be caused by coming into contact with nail during struggle. PW5 identified the accused in court as the person examined by her on 09.03.2012 in respect of whom Ext.P8 certificate was issued by her.

11. PW9 is Santhosh who translated the statements given by PW1 to the police, on the basis of which Ext.P1 First Information Statement was prepared. PW11 is the officer attached to the Forensic Science Laboratory, Thiruvananthapuram who collected blood-stained mucus and saliva from the mouth of the deceased and the cellophane impressions from the front and left parts of the neck of the body of the deceased for forensic examination.

12. PW14 was the Assistant Director, DNA in the Forensic Science Laboratory, Thiruvananthapuram. He deposed that he issued Ext.P14 report after examining the objects sent for DNA examination, in connection with the subject crime. Items 6(a) and 6(b) referred to in Ext.P14 are the nail clippings collected from the body of the deceased at the time of autopsy and items 11(b)(1) and 11(b)(2) referred to therein are the blood samples of the accused. PW14 deposed that items 6(a) and 6(b) dealt with in Ext.P14 contained tissues belonging to the accused as also that of the deceased.

13. PW17 is the Investigating Officer in the case who deposed that the accused was under surveillance and was arrested on 11.03.2012 at 12.10 p.m. He also deposed that he prepared Ext.P2 scene mahazar in the presence of the Director of the Forensic Science Laboratory, Thiruvananthapuram; that he seized a cheque book of the accused, an insurance certificate in the name of the accused, an ID card of the accused, the mobile phone and SIM cards of the accused, a shawl as also an eye latch and hook from the scene of occurrence, in terms of Ext.P2 mahazar. PW17 identified MO1(c) shawl as the shawl seized by him as per Ext.P2 mahazar. He also identified the cheque book and ID card seized by him as per the said mahazar as Exts.P3 and P4 respectively. He also deposed that he made arrangements for the forensic examination of the blood samples and nail clippings of the accused as also the nail clippings and pubic hair of the deceased through the process of the court.

14. There is no witness to the alleged occurrence and the prosecution attempted to prove the occurrence through various circumstances. It is settled that in a case on circumstantial evidence, the circumstances from which the conclusion of guilt is drawn must be fully established; that the circumstances should be of a conclusive nature and tendency; that the facts so established must be consistent only with the hypothesis of the guilt of the accused, that is to say, there should not exist any other hypothesis except the guilt of the accused; that the circumstances must exclude every possible hypothesis except the one to be proved and that there must be a chain of evidence so complete as to not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show in all human probability, that it is the accused who must have done the act.

15. Keeping in mind the aforesaid principles, let us now appreciate the evidence. Among the witnesses whose evidence were referred to above, PW5 was the Doctor who examined the deceased as also the accused after the alleged occurrence, PW9 was the person who translated the statement of PW1 to the police, PW10 was the Doctor who conducted the autopsy, PWs 11, 14, 15 and 18 are officials of the Forensic Science Laboratory and PW17 is the Investigating Officer. The only evidence in the case other than the evidence tendered by the official witnesses and experts is the evidence tendered by PW1. The question is whether the circumstances brought out in the evidence are sufficient to hold that the accused is guilty of the offences alleged against him.

16. As noted, PW1 has categorically testified in his evidence that the accused was residing with his family and that on 09.03.2012, at about 9.45 a.m., when he took his wife to the hospital for check-up, only the accused and deceased were there at the house. It was also testified by PW1 in his evidence that it was by about 12.30 p.m. that they came back from the hospital and that on returning, the house was found locked from inside and he had to break open the front door of the house to go near the deceased whose body was found lying on the floor of the kitchen. The aforesaid evidence of PW1 has not been challenged by the accused in cross-examination. Be that as it may, the recovery of various articles belonging to the accused, including his cheque book from the house of PW1 would corroborate and reinforce the evidence tendered by PW1 that the accused was residing along with his family. Further, the evidence tendered by PW17 that an eye latch and hook were found from the scene of occurrence at the time of preparation of scene mahazar and the recital in Ext.P2 scene mahazar that the eye latch in the doors opening to the sit out of the house was found shaken off, would corroborate and reinforce the evidence tendered by PW1 that when he returned from the hospital, the house was closed from inside and he had to break open the front door to go near the deceased. Inasmuch as it is established that the cause of death of the victim was strangulation, it can be presumed that the death was instantaneous and must have occurred between 9.45 a.m. and 12.30 p.m.

17. As noted, PW1 has also testified in his evidence that on coming to know of the death of Sandhya Kumari, he went back to his house along with Ram Kesari and his friends and brought the accused also to the hospital as he was not responding to the questions put to him. The said part of the evidence of PW1 was not challenged in cross-examination. The evidence tendered by PW5 doctor corroborates that part of the evidence tendered by PW1 inasmuch as it was deposed by her that the accused was brought to the hospital by a local crowd alleging that he committed some foul play. It is thus established from the evidence tendered by PW1 and PW5 that the accused and Sandhya Kumari were together alive in the house of PW1 from 9.45 a.m. onwards on 09.03.2012 and that the accused was found in the very same place with the dead body of Sandhya Kumari after a few hours. Section 106 of the Indian Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In the context of criminal trials, the Apex Court has observed thus in Shambu Nath Mehra v. State of Ajmer, 1956 SCR 199 that Section 106 of the Indian Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. The relevant observation reads thus:

“This lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are pre-eminently or exceptionally within his knowledge.”

Placing reliance on the said judgment, in State of W.B. v. Mir Mohammad Oma , (2000) 8 SCC 382, [LQ/SC/2000/1285] the Apex Court held that Section 106 would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused, by virtue of the special knowledge regarding such facts, offers any explanation which might drive the court to draw a different inference. Coming to the facts of the case, inasmuch as it was established that the accused and Sandhya Kumari were together alive in the house of PW1 from 9.45 a.m. onwards on 09.03.2012 and that the accused was found in the very same place with the dead body of Sandhya Kumari after a few hours, it was obligatory for the accused to offer an explanation as to what happened to Sandhya Kumari in between. It is all the more so since the possibility of anybody else causing the death of Sandhya Kumari without the knowledge of the accused does not arise, for in such a case, the door of the house would not have been locked from inside. The accused has not offered any explanation as to how the death occurred. Inasmuch as the accused failed to offer an explanation in discharge of the burden placed on him under the statutory provision referred to above, it provides an additional link in the chain of circumstances proved against the accused [See State of Rajasthan v. Kashi Ram, (2006) 12 SCC 254] [LQ/SC/2006/1050] .

18. That apart, as noted, the evidence of PW5 would show that the injury noted by her on the body of the accused at the time of examination is one that could be caused by coming into contact with nail during struggle. It is relevant to note in this regard that the occurrence took place between 9.45 a.m. and 12.30 p.m. and the accused was examined by PW5 at about 3.00 p.m. on the same day. No explanation is forthcoming from the accused as to how the said injury occurred. Again, the evidence of PW14 would show that DNA profiling conducted on the tissues found on the nail clippings collected from the deceased revealed that the same includes the tissues of the accused also. DNA profiling is an accurate sign and unlike other opinion evidence, DNA analysis report stands in a different footing and it can be accepted without doubt in the absence of any evidence of tampering. The nail clippings of the deceased were taken at the time of autopsy and forwarded to the court for forensic examination on 10.3.2012 itself, that is, even before the arrest of the accused and as such, possibility of tampering with the same can be completely ruled out. Again, as already noticed, PW10 has deposed in his evidence that injuries 2 and 3 found on the body of the deceased could be caused by hitting that part of the body against a hard or blunt object during a struggle; that injury No.7 found is a nail mark and that injury Nos.6, 8 and 9 could be caused by coming into contact with a rough surface. The aforesaid materials are sufficient to infer that there was a fight or struggle at close quarters between the deceased on one side and the accused on the other side.

19. As noted, the stand taken by the accused at the time of recording his explanation on the evidence let in by the prosecution under Section 313 of the Code was that he does not know PW1 and that he was arrested by the police from the bus stand. The evidence of PW1 and the categoric evidence given by PW5 that it was she who has handed over the custody of the accused to the police for examination by a Government doctor reveals that the stand aforesaid of the accused is false. It is now trite that when an incriminating circumstance is put to the accused and the accused either offers no explanation or offers an explanation which is found to be untrue, then, the same becomes an additional link in the chain of circumstances that make it complete in a case of circumstantial evidence. It was so held by the Apex Court in a catena of decisions [See State of T.N. v. Rajendran, (1999) 8 SCC 679] [LQ/SC/1999/919] .

20. Another relevant aspect that remains to be dealt with is the conduct of the accused after the arrival of PW1 and his wife at their house from the hospital. The evidence of PW1 reveals that when he returned from the hospital at about 12.30 p.m., he found that the accused had packed his belongings in his bag. There was no challenge in the cross-examination about this aspect of the evidence given by PW1 also. That apart, it has come out in evidence that the accused did not open the door of the house when called by PW1 on his return from the hospital. If the evidence tendered by PW1 is understood in the background of the First Information Statement given by him, it could be seen that the accused was then pretending that something happened to him and that he was unconscious and it is on account of the said reason that he was taken to the hospital. As already noticed, PW5, after examining the accused, found that he was normal.

The aforesaid conduct of the accused also, according to us, points towards the guilt of the accused.

21. The evidence let in by the prosecution would certainly show that there was a fight or struggle at close quarters between the deceased on one side and the accused on the other side, but according to us, the same is not sufficient to establish that the accused attempted to commit rape on the deceased. The fight or struggle, as the case may be, might have been for some other reasons as well. Needless to say, the conviction of the accused under Section 511 of 376 IPC is unsustainable.

22. The finding aforesaid takes us to the question as to what then is the motive for the heinous crime attributed to the accused. There is no clue in the evidence. But that does not mean that in the absence of motive, a conviction based on circumstantial evidence cannot be made. If absence of motive in a case based on circumstantial evidence is not of much consequence having regard to the proved circumstances which form part of the chain of circumstances, the law on the point is that there can be a conviction even in the absence of any evidence as regards the motive of the accused [See G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593] [LQ/SC/2010/857] . It is all the more so since the evidence regarding existence of motive which operates in the mind of an assassin is very often not within the reach of others. No doubt, in a case of circumstantial evidence, the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence very closely in order to ensure that suspicion, emotion or conjecture do not take the place of proof.

23. Let us now deal with the arguments advanced by the learned counsel for the accused which have not been dealt with by us hitherto. Even though there was no force in the argument advanced by the learned counsel for the accused that the wife of PW1 who is the sister of the deceased should have also been examined by the prosecution, there is certainly force in the argument of the learned counsel that Ram Kesari who came to the house of PW1 on coming to know of the death of the victim should have been examined to corroborate the evidence tendered by PW1 as to what happened at the house thereafter. But, inasmuch as it is found that the evidence tendered by PW1 is reliable and trustworthy and corroborated in material particulars by the other evidence mentioned above, we are of the view that non-examination of Ram Kesari is not of any consequence as far as the present case is concerned. Likewise, merely for the reason that the crime was initially registered only under Section 174 of the Code, it cannot be contended that the case put forward by the prosecution is false or doubtful, for at that point of time, the information passed on to the police was only that Sandhya Kumari was found dead in the house. As rightly pointed out by PW10 in his cross-examination, rigor mortis will set in within 1 to 2 hours of death. The Authorities on Medical Jurisprudence opine that in warm climates as in our country, rigor mortis begin to disappear within 18 to 24 hours [See H.W.V. Cox's Medical Jurisprudence and Toxicology, Sixth Edition, Pages 210 to 212]. In the case on hand, the fact that the death occurred between 9.45 a.m. and 12.30 p.m. on 09.03.2012 stands proved. Ext.P12 shows that the autopsy was conducted between 2.10 p.m. and 3.00 p.m. on 10.03.2012. In other words, the autopsy was conducted after about 26 hours of the death. The evidence tendered by PW10 does not, in the circumstances, create any doubt as to the genuineness of the prosecution case especially when rigor mortis has not been completely passed off at the time of autopsy. We take this view also for the reason that the speed of onset of rigor mortis will not only depend on the temperature of the environment, but also depend on various other factors like mode of death. The judgments relied on by the learned counsel for the accused, according to us, have no bearing on the facts of the present case.

24. From the aforesaid discussion, it could be seen that the circumstances established in the case are (1) that the accused was a person who was residing with the family of PW1 with whom the deceased was also residing, (2) that the accused and the deceased were together in the house of PW1 on the date of occurrence at about 9.45 a.m., (3) that the death of Sandhya Kumari was caused by strangulation using MO1(c) shawl worn by her between 9.45 a.m. and 12.30 p.m. on the date of occurrence, (4) that the accused was found with the dead body of the deceased, (5) that there was a fight or struggle at close quarters between the deceased on one side and the accused on the other side before her death, (6) that the accused had made arrangements to leave the premises by packing his belongings in his bag by the time PW1 returned home from the hospital, (7) that the accused was pretending that he was unconscious and thereby avoided an explanation to PW1 and others as to what happened to Sandhya Kumari despite repeated questions that were put to him, (8) that the accused was keeping his eyes closed when examined by PW5 pretending that there was something wrong with him, (9) that the accused did not offer any explanation to anyone as to what happened to Sandhya Kumari until his arrest, (10) that PW5 who examined the accused at the hospital, having found that the accused was normal, handed over him to the police, (11) that the accused has not adduced any evidence or offered any explanation as to what happened to Sandhya Kumari and (12) that the stand taken by him while offering his explanation under Section 313 of the Code as to how he was arrested, was incorrect. According to us, though the aforesaid circumstances do not establish that the accused attempted to rape the deceased, the same would certainly establish beyond reasonable doubt that it was the accused who caused the death of Sandhya Kumari. We take this view also for the reason that the said circumstances are consistent only with the hypothesis of the guilt of the accused and the same would exclude every possible hypothesis except the one to be proved.

25. In the light of the discussion aforesaid, the appeal is allowed in part. The conviction of and sentence imposed on the accused for the offence under Section 511 of 376 IPC are set aside. His conviction and sentence for the offence under Section 302 IPC are confirmed.